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Sexual Misconduct with a Person with Disabilities

In Illinois, those who suffer from severe mental or intellectual disabilities are afforded a high level of protection from the state's laws, and workers who are hired to care for such people are expected to act professionally. As a result, employees who engage in sex crimes against a person with a disability face serious charges. If you have been charged with sexual misconduct with a person with a disability, Dolci & Weiland's criminal defense attorneys believe that it is important to know your rights and understand possible defenses to your charge.

An Overview of Sexual Misconduct Law in Illinois

In the state of Illinois, 720 ILCS 5/11-9.5 prohibits a state or community agency employee from engaging in sexual misconduct with a person with a disability. When determining whether or not a person has a disability, the statute utilizes the state's Mental Health and Developmental Disabilities Code.

Employees Defined

For purposes of the statute, a person is deemed to be an "employee" if he or she is

  • employed by the Illinois Department of Human Services,
  • employed by a community agency and provides services at the direction of the owner/operator of the agency, or
  • is a contractual employee of a community agency or the Department of Human Services, such as a subcontractor or volunteer.

Developmental Disability

In Illinois, a person is deemed to have a developmental disability if he or she suffers from

  • an intellectual disability, cerebral palsy, epilepsy, or autism; or
  • any other condition which results in impairment similar to that caused by an intellectual disability, and which requires services similar to those required by persons with an intellectual disability;

The Mental Health and Developmental Disabilities Code further states that in order for a person to be considered developmentally disabled, the disability "must originate before the age of 18 years, be expected to continue indefinitely, and constitute a substantial disability." Thus, a recent intellectual disability which is not expected to be permanent and does not substantially hinder a person's life would not be considered a "disability" for purposes of the sexual misconduct statute.

Mental Illness

A person is said to have a mental illness in Illinois if the person suffers from "a mental or emotional disorder that substantially impairs a person's thought, perception of reality, emotional process, judgment, behavior, or ability to cope with the ordinary demands of life." Thus, a person suffering from schizophrenia or other psychotic disorder would be deemed to have a mental illness for purposes of Illinois' sexual misconduct laws.

Consent Not a Defense

Generally, a person's consent is one of the primary defenses to a charge of a sex crime--if the person consented to the sexual act, then no crime has occurred. In cases of sexual misconduct with a person with a disability, however, consent is not a viable defense; as the law lays out, "[a] person is deemed incapable of consent . . . when he or she is a person with a disability and is receiving services at a State-operated facility or is a person with a disability who is in a residential program operated or supervised by a community agency."

Potential Penalties following a Conviction of Sexual Misconduct with a Person with a Disability

As a Class 3 felony offense, conviction of sexual misconduct with a person with a disability carries severe penalties. Those who are convicted of such a charge face

  • imprisonment for a minimum of 2 and up to 5 years, and/or
  • a fine of up to $25,000.

In addition to the criminal fines that a person charged with this offense faces, conviction of this crime will also result in severe social ramifications, including:

  • immediate forfeiture of the person's employment with the state or community agency, and
  • placement on Illinois' sex offender registry.

Having to register with the state's sex offender registry can have a devastating effect on a person's freedom. Being a part of the registry makes a person unable to live within a certain distance of a school or park, and prohibits a person from visiting these areas altogether. In addition, registered sex offenders are limited in terms of how and where they can spend time with children.

Potential Defenses to a Sexual Misconduct Charge

If you are facing a charge of sexual misconduct with a person with a disability in Illinois, it's critical to contact a criminal defense attorney immediately after your arrest. An attorney who has experience defending against sex crimes may be able to raise a legal defense to your charge which could lessen the punishment that you could face if you were convicted. In certain circumstances, the defense may be so detrimental to the prosecutor's case against you that your charges are dropped altogether.

Lack of Knowledge

For purposes of this charge, knowledge is key--if you had no knowledge that the person with whom you engaged in sexual acts had a disability, and had no genuine reason to believe so, your reasonable lack of knowledge can be a defense to your charge.

Mistaken Identity

If you are a state or agency employee who is facing a charge of sexual misconduct with a person with a disability, you may have simply been at the wrong place at the wrong time. Mental health facilities are run by dozens of employees, and a sexual misconduct charge brought against you could be the result of a genuine act of misconduct that was committed by another employee.


While the above-referenced law applies to employees of a state facility or community agency, the statute carves out an exception for those who are married to a person with a disability, so long as the marriage occurred before the date of custody or initiation of mental services.

Facing a Sexual Misconduct Charge in Illinois? We're Here to Help

If you are an Illinois resident who has been charged with sexual misconduct with a person with a disability, the best decision you can make is to enlist the help of a seasoned criminal defense attorney as soon as possible. Don't try to fight a charge of a sex crime on your own; your quality of life is on the line, and conviction of such a charge could wreak havoc on your life.

The team of criminal defense attorneys at Dolci & Weiland are dedicated to helping those who are facing criminal charges assert their rights and defend against their charge. Don't wait until it is too late; to speak to a member of our legal team about your charge, fill out an online case evaluation form or contact the office closest to you today. For our DuPage office, call (630) 261-9098, or for our downtown Chicago location, call (312) 238-9007.